Corwin amendment

From Academic Kids

The Corwin Amendment was, and remains, a proposed amendment to the United States Constitution offered by Ohio Congressman Thomas Corwin during the closing days of the 2nd Session of the 36th Congress in the form of House Joint Resolution No. 80. The proposed—but not ratified and technically still pending—amendment would have forbidden any attempt to subsequently amend the Constitution to permit the federal government to "abolish or interfere" with the "domestic institutions" of the states. In particular, the Corwin Amendment was intended to prohibit Congress from banning the practice of slavery in those states which permitted that practice. It was a last-ditch effort to avert the outbreak of the Civil War. Corwin's joint resolution emerged as the House of Representatives' version of an earlier, identical proposal in the Senate offered by William Seward.


Text of the Amendment

The Corwin Amendment appears officially in Volume 12 of the Statutes at Large at page 251. Its text is as follows:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

Proposal by Congress

On February 28, 1861, the United States House of Representatives approved the joint resolution by a vote of 133-65 (Page 1285, Congressional Globe). On March 2, 1861, it was approved by the United States Senate with a vote of 24-12 (Page 1403, Congressional Globe). Since proposed constitutional amendments require a 2/3rds majority, 132 votes were required in the House and 24 in the Senate. A young Henry Adams observed that the measure narrowly passed both bodies due to the lobbying efforts of Abraham Lincoln, the President-Elect. Seven states had already seceded from the Union at that point, and most of their senators and representatives had already vacated their congressional seats.

The joint resolution was signed by President James Buchanan—shortly before President Lincoln was inaugurated—but it has long been established that a Presidential signature is unnecessary in the constitutional amendment process since the President has no formal role in it as noted in the 1798 case of Hollingsworth v. Virginia. By the same logic, a President is powerless to veto a proposed constitutional amendment.

Ratification Actions in the States

Ratification efforts began quickly after the joint resolution's adoption by Congress and included a public endorsement in Lincoln's first inaugural address. The proposal was ratified by the legislatures of Ohio (May 13, 1861) and Maryland (January 10, 1862). Illinois lawmakers—sitting as a constitutional convention at the time—also approved it, although that action is of questionable validity. The amendment is known to have been considered for ratification in several additional states including Connecticut, Kentucky, and New York where it was either rejected or died in committee under neglect as other pressing wartime issues came to preoccupy the nation's attention. In any case, this was and remains, far short of the approval of 3/4ths of the states necessary in order to amend the Federal Constitution. Had the Corwin Amendment been ratified by enough states before the end of the Civil War, it would have been the 13th Amendment.

As recently as 1963—more than a full century after the Corwin Amendment was proposed to the state legislatures by Congress—a joint resolution to ratify it was introduced in the Texas House of Representatives by Dallas Republican Henry Stollenwerck (House Joint Resolution No. 67, 58th Texas Legislature, Regular Session, 1963) but Stollenwerck's joint resolution received no further consideration in that body than to be referred to its Committee on Constitutional Amendments on March 7, 1963.

With 50 states currently in the Union, ratification by the legislatures of 38 states is required for a proposed amendment to find its way into the Constitution—and with specific regard to the Corwin Amendment, 36 more in addition to those two whose previous ratifications remain valid. Since no U.S. state's constitution currently permits slavery, the effect of any belated complete ratification of the Corwin Amendment would be minimal and potentially not even related to slavery at all.


Apart from its subject matter, the Corwin Amendment also raises an important issue of constitutional theory, namely whether a democratic constitution can prohibit certain amendments to itself through what amounts to an entrenched clause. When viewed as an entrenched clause, the Corwin Amendment—had it been ratified—might well have prohibited the later, real 13th Amendment, ratified in 1865, which finally did abolish slavery outright uniformly in all sections of the nation. A competing theory suggests that were a later amendment—contrary to an already-ratified Corwin Amendment—incorporated into the Constitution, then (A) the Corwin Amendment could, and should, be explicitly repealed by that later amendment (as was the case with the 18th Amendment's explicit repeal by the 21st Amendment); or (B) by mere inference, the later amendment would be deemed to modify or completely obliterate an already-ratified Corwin Amendment.

The Corwin Amendment's 19th Century supporters, such as Lincoln, seem to have believed that the Corwin Amendment would not have changed the status of the law as it existed in the 1860's other than simply to restrict Congress' future powers and that supporters further appeared to have regarded the Corwin Amendment as a mere reiteration of principles that were already contained in the Constitution. That view, however, contrasts with the position espoused by some abolitionists such as Frederick Douglass and Lysander Spooner, who argued that slavery, in fact, was not truly protected in the original Constitution.

Several other amendments, such as those included in the proposed Crittenden Compromise, aimed to forestall the secession crisis. Most such proposals involved a return to the terms of the Missouri Compromise, but Republicans defeated all such attempts to allow any further advance of slavery into the territories.

As previously noted, the amendment that did become the Thirteenth Amendment in 1865 successfully abolished slavery and granted to Congress legislative powers to enforce its provisions.

See also the Twenty-seventh Amendment to the United States Constitution and Child labor amendment as well as Coleman v. Miller.

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